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TMI Blog1986 (10) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... nity to explain his case was not afforded. It was explained before the Appellate Controller that an appeal has been filed before the Tribunal against the estate duty assessment order and that full relief was expected so that there was no necessity to pay any estate duty. The Appellate Controller observed that the above ground taken by the accountable person was not sufficient reason for not paying the estate duty which had been legally imposed after due assessment. However, in view of some reduction of duty by an order of the Commissioner (Appeals), he reduced the quantum of penalty to Rs. 13,000. 3. Shri S.P. Bagadthey, the learned representative for the accountable person, placed before us a copy of the order of the Tribunal in ED Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of penalty that can be levied under section 73(5) for non-payment of estate duty is nil. In this view of the matter it is not necessary to go into the merits of the case. Consequently, we cancel the penalty of Rs. 13,000 sustained by the Appellate Controller. 6. In the result, the appeal is allowed. Per Shri S.K Jain, Judicial Member --- In my judgment this appeal of the accountable person from the order of the Appellate Controller deserves to be allowed for these reasons : The assessment order was passed by the Assistant Controller on 20-1-1982. Then the Appellate Controller by order dated 4-4-1983 partly allowed the appeal of the accountable person. The accountable person came in second appeal before the Tribunal. The Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The accountable person is now in second appeal against the order of the Assistant Controller sustaining penalty of Rs. 13,000. 2. It is to be noticed that for the purpose of imposition of penalty in the event of the accountable person being a defaulter and for recovery of duty and penalty sub-sections (1), (1A), (2), (3), (4), (5), (5A), (6) and (7) of section 46 of the Indian Income-tax Act have been made applicable. According to section 73(5) of the Estate Duty Act the said sub-sections of section 46 of the Indian Income-tax Act shall apply as if the said provisions were provisions of the Estate Duty Act. The Indian Income-tax Act has been repealed by section 297 of the Income-tax Act. Despite such repeal the various sub-sections of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceedings for recovery of the tax notwithstanding the filing of the appeal." 4. Section 73(4) though provides that notwithstanding anything contained in the said section, where the accountable person has presented appeal under section 62 of the Act, the Controller may in his discretion treat the accountable person is not being in default as long as such appeal has not been disposed of. However, this is discretionary with the Controller. This can be better put in these words of the Hon'ble Supreme Court---"To save an assessee from penalty, the Income-tax Officer may treat him as not in default but if he does not, he is within his rights." [See Seghu Duchiah Setty's case at p. 552.] The accountable person, therefore, cannot escape liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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